FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF

AMERICA,

Plaintiff-Appellee,

v.

GENARO ACEVEDO-DE LA

CRUZ,

Defendant-Appellant.

No. 15-10418

D.C. No.

4:14-cr-01196-RM-EJM-1

OPINION

Appeal from the United States District Court

for the District of Arizona

Rosemary Marquez, District Judge, Presiding

Argued and Submitted October 21, 2016

San Francisco, California

Filed January 5, 2017

Before: Carlos T. Bea and Sandra S. Ikuta,

Circuit Judges, and Jane A. Restani, Judge.

*

Opinion by Judge Ikuta

* The Honorable Jane A. Restani, Judge for the U.S. Court of

International Trade, sitting by designation.
2 UNITED STATES V. ACEVEDO-DE LA CRUZ

SUMMARY**

Criminal Law

Affirming a sentence, the panel held that a violation of a

protective order involving an act of violence or credible threat

of violence in violation of California Penal Code § 273.6(d)

is a categorical crime of violence for purposes of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). 

COUNSEL

Henry Jacobs (argued), Law Offices of Henry Jacobs PLLC,

Tucson, Arizona, for Defendant-Appellant.

Lauren LaBuff (argued), Assistant United States Attorney;

Robert L. Miskell, Appellate Chief; John S. Leonardo, United

States Attorney; United States Attorney’s Office, Tucson,

Arizona; for Plaintiff-Appellee.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. ACEVEDO-DE LA CRUZ 3

OPINION

IKUTA, Circuit Judge:

This appeal raises the question whether a violation of a

protective order involving an act of violence or credible threat

of violence in violation of section 273.6(d) of the California

Penal Code is a categorical crime of violence for purposes of

§ 2L1.2(b)(1)(A)(ii) of the United States Sentencing

Guidelines (“U.S.S.G.” or “Sentencing Guidelines”).1 We

review de novo the district court’s determination that Genaro

Acevedo-De La Cruz’s prior conviction constitutes a crime of

violence, United States v. Mendoza-Padilla, 833 F.3d 1156,

1158 (9th Cir. 2016), and we affirm.

I

We first set forth the legal framework applicable to this

appeal. The federal Sentencing Guidelines impose a base

offense level of 8 for defendants convicted of unlawful

reentry in violation of 8 U.S.C. § 1326. See U.S.S.G.

§ 2L1.2(a). If the defendant had a prior felony conviction for

“a crime of violence,” the Sentencing Guidelines in effect at

the time of Acevedo-De La Cruz’s sentencing provided for a

1 All citations to the United States Sentencing Guidelines are to the

2014 manual, which applied at the time of Acevedo-De La Cruz’s

sentencing. See Johnson v. Gomez, 92 F.3d 964, 968 (9th Cir. 1996). 

Amendments to the Sentencing Guidelines effective November 1, 2016,

eliminated the relevant language in U.S.S.G. § 2L1.2(b)(1)(A)(ii). U.S.

Sentencing Guidelines Manual app. C, amend. 802, at 147–49 (U.S.

Sentencing Comm’n 2016).
4 UNITED STATES V. ACEVEDO-DE LA CRUZ

16-level sentence enhancement. Id. § 2L1.2(b)(1)(A)(ii).2 A

“crime of violence” is defined to include any “offense under

federal, state, or local law that has as an element the use,

attempted use, or threatened use of physical force against the

person of another.” Id. § 2L1.2, cmt. n.1(B)(iii).3 “Physical

force” for purposes of the Sentencing Guidelines means

“force capable of causing physical pain or injury to another

2 U.S.S.G. § 2L1.2, “Unlawfully Entering or Remaining in the United

States” provided, in pertinent part:

(a) Base Offense Level: 8

(b) Specific Offense Characteristic

(1) Apply the Greatest:

Ifthe defendant previouslywas deported, or unlawfullyremained

in the United States, after—

(A) a conviction for a felony that is . . . (ii) a crime of

violence . . . increase by 16 levels if the conviction receives

criminal history points under Chapter Four or by 12 levels

if the conviction does not receive criminal history points.

3

 Application Note 1(B)(iii) to § 2L1.2 provided:

“Crime of violence” means any of the following

offenses under federal, state, or local law: murder,

manslaughter, kidnapping, aggravated assault, forcible

sex offenses (including where consent to the conduct is

not given or is not legally valid, such as where consent

to the conduct is involuntary, incompetent, or coerced),

statutory rape, sexual abuse of a minor, robbery, arson,

extortion, extortionate extension of credit, burglary of

a dwelling, or any other offense under federal, state, or

local law that has as an element the use, attempted use,

or threatened use of physical force against the person of

another.
UNITED STATES V. ACEVEDO-DE LA CRUZ 5

person.” United States v. Flores-Cordero, 723 F.3d 1085,

1087 (9th Cir. 2013) (quoting Johnson v. United States,

559 U.S. 133, 140 (2010)). To determine whether a prior

conviction qualifies as a crime of violence, we use the

categorical approach set forth in Taylor v. United States,

495 U.S. 575 (1990). We first identify the elements of the

statute of conviction, and then compare those elements to the

generic federal definition of a crime of violence to determine

whether the statute of conviction criminalizes more conduct

than the generic federal crime. Almanza-Arenas v. Lynch,

815 F.3d 469, 475 (9th Cir. 2016) (en banc). If the statute of

conviction criminalizes the same (or less) conduct as does the

generic federal crime, then the sentence enhancement applies

to every conviction under the statute of conviction.4 Id.

When interpreting a state statute of conviction, we look to

the state’s rules of statutory construction. Id. “Under

California law, the cardinal rule of statutory construction is to

determine the intent of the legislature.” Id. (quoting

Lieberman v. Hawkins (In re Lieberman), 245 F.3d 1090,

1092 (9th Cir. 2001)). To ascertain the intent of the

legislature, we look first to the plain language of the statute. 

Id. “We give the language its usual and ordinary meaning,

and ‘[i]f there is no ambiguity, then we presume the

lawmakers meant what they said.’” People v. Gutierrez,

58 Cal. 4th 1354, 1369 (2014) (alterations in original)

(quoting Mays v. City of Los Angeles, 43 Cal. 4th 313, 321

4

If the statute of conviction criminalizes more conduct than the

generic federal crime, we consider whether the statute is divisible; if it is

divisible, then we apply the modified categorical approach. Descamps v.

United States, 133 S. Ct. 2276, 2284 (2013). Here, we do not need to

apply the modified categorical approach because we conclude that a

conviction under section 273.6(d) of the California Penal Code is

categorically a crime of violence.
6 UNITED STATES V. ACEVEDO-DE LA CRUZ

(2008)). “When attempting to ascertain the ordinary, usual

meaning of a word, courts appropriately refer to the

dictionary definition of that word.” Wasatch Prop. Mgmt. v.

Degrate, 35 Cal. 4th 1111, 1121–22 (2005).

The conclusion that a state statute criminalizes more

conduct than is included in the generic federal definition of a

crime of violence “requires more than the application of legal

imagination to a state statute’s language.” Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007). Rather, “[i]t

requires a realistic probability, not a theoretical possibility,

that the State would apply its statute to conduct that falls

outside the generic definition of a crime.” Id. To show that

realistic probability, the defendant “must at least point to his

own case or other cases in which the state courts in fact did

apply the statute in the special (nongeneric) manner for which

he argues.” Id.

The state statute of conviction at issue here is section

273.6(d) of the California Penal Code, which criminalizes a

violation of a protective order “involving an act of violence

or ‘a credible threat’ of violence.”5“A credible threat” of

violence is defined as “a threat made with the intent and the

5

 Cal. Penal Code § 273.6(d) provides:

A subsequent conviction for [an “intentional and

knowing violation” of certain protective orders

described in section 273.6(a)], occurring within seven

years of a prior conviction for a violation of an order

described in subdivision (a) and involving an act of

violence or “a credible threat” of violence, as defined in

subdivision (c) of Section 139, is punishable by

imprisonment in a county jail not to exceed one year, or

pursuant to subdivision (h) of Section 1170.
UNITED STATES V. ACEVEDO-DE LA CRUZ 7

apparent ability to carry out the threat so as to cause the target

of the threat to reasonably fear for his or her safety or the

safety of his or her immediate family.” Cal. Penal Code

§ 139(c).

II

We now turn to the facts of this case. On April 23, 2015,

Acevedo-De La Cruz pleaded guilty to one count of illegal

reentry following deportation in violation of 8 U.S.C.

§ 1326(a). At sentencing, the district court considered the

effect of Acevedo-De La Cruz’s previous felony conviction

under section 273.6(d) of the California Penal Code for a

violation of a protective order involving an act of violence or

a credible threat of violence. The district court concluded

that this prior conviction was a categorical crime of violence

warranting a 16-level sentence enhancement under

§ 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. 

Accordingly, the district court sentenced Acevedo-De La

Cruz to 46 months imprisonment.

III

On appeal, Acevedo-De La Cruz claims that his

conviction under section 273.6(d) of the California Penal

Code is not a categorical crime of violence for purposes of

§ 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. He

reasons that one element of section 273.6(d) refers only to “a

credible threat of violence” while § 2L1.2(b)(1)(A)(ii) refers

to a threat of “physical force,” and argues that “violence”

criminalizes more conduct than “physical force.” In making

this argument, Acevedo-De La Cruz relies on the third

definition of “violence” in the Merriam-Webster Online

Dictionary, which defines “violence” as including “vehement
8 UNITED STATES V. ACEVEDO-DE LA CRUZ

feeling or expression: fervor.” In light of this definition, he

contends, section 273.6(d) could criminalize a credible threat

of violence without the threatened use of physical force.

No California court has yet construed the word “violence”

for purposes of section 273.6(d), so we begin with the plain

text of the statute. Almanza-Arenas, 815 F.3d at 475. The

primary definition of “violence” in the dictionary requires

physical force. Black’s Law Dictionary defines “violence” as

“[t]he use of physical force, [usually] accompanied by fury,

vehemence, or outrage; [especially] physical force unlawfully

exercised with the intent to harm.” Black’s Law Dictionary

(10th ed. 2014) (emphasis added). The Oxford English

Dictionary similarly defines “violence” as “[t]he deliberate

exercise of physical force against a person, property, etc.;

physically violent behaviour or treatment;” and “the unlawful

exercise of physical force, intimidation by the exhibition of

such force.” Oxford English Dictionary (3d ed. 2014)

(emphasis added).

When interpreting other state statutes, California courts

have adopted this common understanding of the word

“violence” in concluding that force can occur without

violence, but violence cannot occur without force. See

People v. Babich, 14 Cal. App. 4th 801, 807 & n.2 (1993)

(holding that “violence” under the California false

imprisonment statute means “the exercise of physical force

used to restrain over and above the force reasonably

necessary to effect such restraint,” and noting that such a

conclusion is “consistent with applicable dictionary

definitions, which suggest violence always includes force, but

force may or may not include violence” (emphasis added));

see also People v. Newman, 238 Cal. App. 4th 103, 108

(2015); People v. Dominguez, 180 Cal. App. 4th 1351, 1357
UNITED STATES V. ACEVEDO-DE LA CRUZ 9

(2010). We see no basis for departing from this commonsense interpretation of “violence” for purposes of section

273.6(d). See Wasatch Prop. Mgmt., 35 Cal. 4th at 1122

(“The court will apply common sense to the language at hand

and interpret the statute to make it workable and

reasonable.”). The usual and ordinary definition of

“violence” includes physical force. See Gutierrez, 58 Cal. 4th

at 1369.

While Acevedo-De La Cruz correctly notes that

dictionaries have provided other definitions of “violence,”

including the expression of vehement feelings, he fails to

point us to any “cases in which the state courts in fact did

apply [section 273.6(d)] in the special (nongeneric) manner

for which he argues.” Duenas-Alvarez, 549 U.S. at 193. Nor

has he otherwise demonstrated that there is “a realistic

probability, not a theoretical possibility” that California

would deem the term “violence” to include rhetorical

vehemence, without more, for purposes of a violation of

section 273.6(d). Id. Therefore, Acevedo-De La Cruz’s

contention that the California legislature intended “violence”

under section 273.6(d) to mean the expression of vehement

feeling without physical force relies on “legal imagination.” 

Id. We conclude that “a credible threat of violence” under

section 273.6(d) does not criminalize more conduct than the

threatened use of physical force for purposes of

§ 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.

We therefore hold that a conviction under section

273.6(d) of the California Penal Code is a categorical crime

of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the
10 UNITED STATES V. ACEVEDO-DE LA CRUZ

Sentencing Guidelines. The district court did not err in

adding a 16-level enhancement to Acevedo-De La Cruz’s

sentence.6

AFFIRMED.

6

 Acevedo-De La Cruz’s October 27, 2016, motion is granted.